Rolling Doughnut

As if we needed further proof of the current spree of attacks on rights, now the Justice Department is going after pornography. According to the article, the goal isn’t to rid the country of porn that is clearly reprehensible, such as child pornography:

In this field office in Washington, 32 prosecutors, investigators and a handful of FBI agents are spending millions of dollars to bring anti-obscenity cases to courthouses across the country for the first time in 10 years. Nothing is off limits, they warn, even soft-core cable programs such as HBO’s long-running Real Sex or the adult movies widely offered in guestrooms of major hotel chains.

Department officials say they will send “ripples” through an industry that has proliferated on the Internet and grown into an estimated $10 billion-a-year colossus profiting Fortune 500 corporations such as Comcast, which offers hard-core movies on a pay-per-view channel.

The Justice Department recently hired Bruce Taylor, who was instrumental in a handful of convictions obtained over the past year and unsuccessfully represented the state in a 1981 case, Larry Flynt vs. Ohio.

This scares me. I believe that we are free to make, distribute, and view pornography if we wish, given that it involves consenting adults. That’s the basic idea of liberty. Yet, we have this:

Drew Oosterbaan, chief of the division in charge of obscenity prosecutions at the Justice Department, says officials are trying to send a message and halt an industry they see as growing increasingly “lawless.”

“We want to do everything we can to deter this conduct” by producers and consumers, Oosterbaan said. “Nothing is off the table as far as content.”

Deter this conduct? By consumers? Nothing is off the table as far as content? Where might this be heading…

Regarding the law that Attorney General Ashcroft and the Justice Department will use, there’s this:

The law itself rests on the landmark 1973 Supreme Court decision in Miller vs. California, which held that something is “obscene” only if an average person applying contemporary community standards finds it patently offensive. But until now, it hasn’t been prosecuted at the federal level for more than 10 years.

The question is simple: who decides “community standards”? That leads to the next question I have: if my neighbors disagree with what I’m doing, but I’m not harming anyone, why do they get to decide that I can’t do it? When did the Constitution begin to grant the right for the majority to quiet the minority opinion? I don’t believe it does.

Freedom grants you the right to believe and behave as you wish, as long as you’re not harming others. The drawback is that I get the same rights. Freedom doesn’t imply freedom from mental anguish because of things you disagree with. The only way to “guarantee” that we get all Disney and no MTV (as FCC Commissioner Michael J. Copps so eloquently put the family-oriented debate) is to turn America into a dictatorship.

Instead, I prefer this idea from Representative Ron Paul, which is brilliant. (I don’t know his views on pornography, so I’m not endorsing the connection that this quote represents his views on pornography. But it’s relevant for the my view of the concept of censorship – “content intrusion” for those of you playing the home version of The Political Hate Speech Drinking Game&trade.):

Since most Americans- I hope- are still for freedom of expression of political ideas and religious beliefs, no one claims that anyone who endorses freedom of speech therefore endorses the nutty philosophy and religious views that are expressed. We should all know that the 1st Amendment was not written to protect non-controversial mainstream speech, but rather the ideas and beliefs of what the majority see as controversial or fringe.

The temptation has always been great to legislatively restrict rudeness, prejudice, and minority views, and it’s easiest to start by attacking the clearly obnoxious expressions that most deem offensive. The real harm comes later. But “later” is now approaching.

The failure to understand that radio, TV, and movies more often than not reflect the peoples’ attitudes prompts this effort. It was never law that prohibited moral degradation in earlier times. It was the moral standards of the people who rejected the smut that we now see as routine entertainment. Merely writing laws and threatening huge fines will not improve the moral standards of the people. Laws like the proposed “Broadcast Indecency Act of 2004” merely address the symptom of a decaying society, while posing a greater threat to freedom of expression. Laws may attempt to silence the bigoted and the profane, but the hearts and minds of those individuals will not be changed. Societal standards will not be improved. Government has no control over these standards, and can only undermine liberty in its efforts to make individuals more moral or the economy fairer.

Proponents of using government authority to censor certain undesirable images and comments on the airwaves resort to the claim that the airways belong to all the people, and therefore it’s the government’s responsibility to protect them. The mistake of never having privatized the radio and TV airwaves does not justify ignoring the 1st Amendment mandate that “Congress shall make no law abridging freedom of speech.” When everyone owns something, in reality nobody owns it. Control then occurs merely by the whims of the politicians in power. From the very start, licensing of radio and TV frequencies invited government censorship that is no less threatening than that found in totalitarian societies.

We should not ignore the smut and trash that has invaded our society, but laws like this will not achieve the goals that many seek. If a moral society could be created by law, we would have had one a long time ago. The religious fundamentalists in control of other countries would have led the way. Instead, authoritarian violence reigns in those countries.

If it is not recognized that this is the wrong approach to improve the quality of the airways, a heavy price will be paid. The solution to decaying moral standards has to be voluntary, through setting examples in our families, churches, and communities- never by government coercion. It just doesn’t work.

Amen.

I’ve put this entry on hold for more than a week, but thanks to the FCC’s nonsense regarding Howard Stern, it’s now relevant. Here are my views on the National Association of Broadcaster’s Summit on Responsible Programming. This summit featured key speeches by FCC Chairman Michael Powell and FCC Commissioner Michael J. Copps. I could offer a nice thesis on indecency and my Libertarian view, but I’ve explained that in many previous posts. Thus, I wish to take issue with parts of the speeches, offering my commentary on each segment I believe to be relevant to the current debate.

First up, comments by FCC Chairman Michael Powell:

Of particular significance, and concern, is that the debate re-energized the previously fading debate about the role of government in content-whether it be restricting offensive content, or promoting favored content and viewpoints. This increased comfort with content intrusion is part of what is on display in the furious debate about broadcast indecency and excessive violence.

Increased comfort with “content intrusion”? How can he say that and think it’s acceptable? It’s not. He’s framing the debate and hoping, with reasonable expectation, that people will agree. “Content intrusion” is called censorship. I could end my argument here and it would be sufficient.

Indeed, I am of the view that competitive pressures much more than consolidation are what account for more programming that tests the limits of indecency and violence. As audience continues to fragment and the number of choices multiplies, it is harder and harder to grab and hold a viewer or listener.

It’s harder, so broadcasters are following formulas. The “indecency” showing up on the public airwaves is a result of changing attitudes in America. Writers are expressing that acceptance. Broadcasters try to fight this.

Watch television or listen to the radio. Everything is the same, except for a few outliers on the fringe. Those fringe players are the talented ones. Howard Stern is not the norm. Jack Diamond is the norm. But Howard Stern is nationally syndicated because this is what people want to hear. There is a Jack Diamond in every city in America. They’re on the air because they’re not “filthy”. But listeners don’t come charging back for more. Family-oriented gets wacky programming. Talent-driven gets funny programming. I’ll take funny.

Currently, however, we are not talking about speech or conduct on the margin that has set off the current powder keg in the country. We see increasing – – -I might even say escalating – – – complaints from the public because increasingly it seems the media is not playing close to the line, but is outright leaping past the line and in fact daring the audience and daring the government to do anything about it. Some of the transcripts I have been forced to read reveal content that is pure trash, plain and simple, and few, other than staunch libertarians, could possibly stand up and defend it publicly.

Michael, please, put the hammer down. It’s hard work building your own cross. Stop for a moment and get some lemonade.

In other words, the debate is not best understood as one about what you can do or cannot do on radio or television. Rather, it is more about whether consumers can rely on reasonable expectations about the range of what they will see on a given program at a given time.

He’s lying. If he believed this, he wouldn’t be going after Howard Stern. Every listener who tunes in Howard Stern knows exactly what type of program will air. If he believed this, he’d be fighting for time-delays on live broadcasts instead of tougher legislation.

It is not Janet’s nudity that is decried. It is the fact that “by god it was the Superbowl!” the largest prime television event of the year. An event for friends and family. People do not want to feel that they can be struck by lightning, or hit by a truck at any moment. Similarly, they do not like the sense they have no safe expectation of what they might see or hear during a given program-precisely the formula some are using to grab headlines. By the nature of your medium, consumers expect more of you than most.

And now he’s trying to reduce Janet Jackson to familiarity. He’s attempting to further frame the debate in his favor. And I fail to see the connection between naked breasts and being struck by lightning or being hit by a truck. And I do expect more of broadcasters, as opposed to worrying about nuclear proliferation, world hunger, and global warming. Naked breasts are a serious danger to civilization.

And, last but not least, the law says so.

I know he didn’t say this. It’s not possible, even though “Because I said so” is a great argument. Slavery was “the law”. No female suffrage was “the law”. Does this make it right?

It is your “publicness” that also invites strong governmental oversight and interest. The ability to limit these intrusions and protect your commercial viability depends heavily on policing yourselves. I think this industry must set a higher standard commensurate with its privilege as public trustees and with its own traditions. Setting your own standards is your best defense.

In this vein, I want to strongly encourage you to develop and adopt a new voluntary code to guide your actions in the same spirit you have in years past. I believe you can create such best practices and guidelines, consistent with the law. It would be in your interest to do so.

Seriously? This is a stupid idea. It’s the same as being forced to cut your own switch. (If you’re not from the South, you may need that explained to you.) If broadcasters knew what was safe and what was “illegal”, this debate wouldn’t be happening. Their point is that if you don’t like their rules, you’re going to tell them to go back and try again. Why waste time, Chairman Powell? What are you afraid of?

Finally, I have heard some of you call for an FCC rulemaking to create more “clarity” as to what is prohibited. I want to warn you that this is unwise. You do not want to ask the government to write a “Red Book” of Dos and Don’ts. I understand the complaint about knowing where the line is, but heavier government entanglement through a “Dirty Conduct Code” will not only chill speech, it may deep freeze it. It might be an ice age that would last a very long time.

That is the money quote. Nope, they’re not interested in taking away your rights. Nope, not at all. Chairman Powell, you can talk all the big talk you want, but it’s obvious that you don’t want to write a “Red Book” because you know a court will strike it down as unconstitutional.

I will conclude, as I once concluded a speech on the First Amendment several years ago: “We should think twice before allowing the government the discretion to filter information to us as they see fit, for the King always takes his ransom.”

I was wrong. That’s the money quote.

Next up, comments by FCC Commissioner Michael J. Copps:

We are here because millions of Americans have made it convincingly clear that they no longer will tolerate media’s race to the bottom when it comes to indecency on the people’s airwaves.

Prove it. One listener in Fort Lauderdale doesn’t speak for America. Until you set up a corresponding system that allows citizens to voice their approval of “indecent” material, you’ll only hear the slanted voice of complaints. That’s not fair government.

Every day when I boot up my FCC computer, every time I visit a town or city anywhere across this country of ours, I hear the people’s concern: we are fed up, they say, with the patently offensive programming coming our way so much of the time. I saw the people’s anger all last year when Commissioner Adelstein and I took to the road in our media ownership forums, and I saw it again over the past few months as all the Commissioners were in Charlotte, North Carolina and San Antonio, Texas for hearings on localism-people from all walks of life and every political persuasion lined up to express their frustration-their anger-with the sex, violence and profanity that pervades so much of our media. We even had kids stand up and say how fed up they are with the programming coming their way.

Define “patently offensive”. And when did it become acceptable for Charlotte and San Antonio to speak for America?

About the only place where the Super Bowl had a galvanizing effect was here in Washington, particularly at the FCC, where the tired old arguments I have been hearing for the past three years were finally laid to rest-I think. “If people don’t like what they’re seeing, they can just turn it off,” I was told. Are we supposed to just turn off the all-American Super Bowl?

My response is simple: Yes, turn off the Super Bowl. I know it will be difficult, since you’ll have to unwrap yourself from the flag, but I think you can manage it. Watching the Super Bowl is your right. It is not your right to dictate what should be on the Super Bowl. If you get to make that argument, then I’m making the rule that the Redskins get to play in the Super Bowl every year. Am I supposed to watch the all-American Super Bowl without my favorite team? I think not, Mr. Copps.

I believe that, as a society, we have a responsibility to protect children from content that is inappropriate for them. And when it comes to the broadcast media, the Federal Communications Commission has the statutory obligation-the legal mandate-to protect children from indecent, profane and obscene programming.

I’m sure my brother is thrilled that you feel you can protect his son better than he can. I believe he’ll expect you to pay child support if you intend to raise his child, though. Oh, but I forgot, he’s a man, so he’s an irresponsible, inadequate parent. Forgive me. Please.

But while you meet and discuss and move toward I hope resolute new industry policies on indecency, I am going to be pressing my colleagues to get on with the job of enforcing the statute, using all the ammunition already in our armory and also putting to immediate use any additional arrows that Congress may provide for our quiver.

Perfect. While Chairman Powell is suggesting the industry right it’s own rules of conduct, you don’t wish to wait for that. You just want to enforce, enforce, enforce. Allow me to ask this silly question: which rules are you enforcing?

Let me urge you also to cast your net widely as you develop a program. A grassroots issue merits-indeed compels-grassroots input. If this was an “inside-the-Beltway” issue, we wouldn’t be here today. Open your doors, let the sun shine in, reach out and talk to those who you want to see and hear your programs. You’ll have a better product by far if you do this.

Commissioner Copps should be honest and say what type of programming he demands. Broadcasters have been “opening their doors and letting the sun shine in” with some silly little invention called the Nielsen Ratings. It tells broadcasters what people are watching. Which determines what programming earns money from advertisers. Which determines what continues to get on the air. And who decides what defines “better product” in your mind? What if broadcasters do this and the people say “We want smut!”? What then?

It’s clear that both men have an agenda. I’m more concerned about Chairman Powell because he’s trying to shape this debate with subtlety. Commissioner Copps is trying to bludgeon the issue, which will never achieve his desired result. However, both are attacking free speech rights and that’s unacceptable.